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Courtney-Terrell, C.J.—This appeal arises out of a suit by the Bengal NorthWestern Railway Company, plaintiff 1 and the Secretary of State, plaintiff 2, to eject the defendants from 175 acres of land situated near Kursela Railway Station on the Bengal North Western Railway, and for rent and mesne profits. Ladu Prasad, the father of the defendants, was granted 48 acres of the land in dispute by an agreement dated June 1920, for a period of one year. There was a similar agreement dated 19th June 1920, with regard to 92 acres. The defendants are alleged to have encroached upon the remainder of the land in dispute. The contention of the plaintiffs is that under the agreements referred to, namely 1 (K 1) and 1 (L 1), the father of the defendants was merely a licensee for one year. The contention of the defendants, on the other hand, is that this land was settled with Ladu Prasad as a raiyat for the purpose of cultivation and that, Ladu Prasad being a settled raiyat of the village in which the land is situated, he immediately acquired occupancy rights in the land covered by the agreement. To this the reply of the plaintiffs was that the land in dispute was land which had been acquired for the Railway Company under the Land Acquisition Act of 1894, and therefore that Section 116, Ben. Ten. Act, applied to bar the acquisition of occupancy rights in the land by Ladu Prasad. The defendants also contended that Ladu Prasad had been granted a permanent tenancy of the land by the Railway Company in August 1920.
The facts necessary to be stated for the determination of the dispute between the parties are as follows: Plaintiff 1 is the proprietor of the Bengal North Western Railway and plaintiff 2 is the proprietor of the Tirhut State Railway. By an indenture (Ex. 12(b), dated 18th July 1890), between plaintiffs 1 and 2 plaintiff 1 took over the management of the Tirhut State Railway on the terms stated in the indenture. Shortly stated the effect of the agreement between the plaintiffs was that plaintiff 1 took over the management of the Tirhut State Railway and plaintiff 2 undertook to supply capital for the purposes of the railway and to acquire land for the purposes of the railway as occasions should require. The indenture debarred plaintiff 1 from selling any property forming part of the Tirhut State Railway without the sanction of plaintiff 2. In all matters not expressly covered by the indenture it was agreed that plaintiff 1 should be subject to the supervision and control of plaintiff 2. This agreement was subsequently supplemented by another indenture between the plaintiffs, dated 23rd July, 1896, which required plaintiff 1 to construct a railway from Hajipur to Begum Serai and from Garhara to Katihar. Kursela Railway Station lies between Garhara and Katihar.
On 26th November 1912, the Railway Board of the Government of India issued a circular to the Agents of certain railways, including the Agent of the Bengal North Western Railway Co., regarding the leasing of railway lands. It was pointed out that it was not permissible for a Railway Co. to lease out lands not required for the purposes of the railway except with the sanction of the Secretary of State. The railway Agents were however informed that it was permissible to grant licenses to outsiders for certain purposes and to railway servants for the purposes of cultivation, etc. A specimen license form was annexed to the circular. In terms the form of license applied only to land let for the purposes of constructing and maintaining bulk oil depots, but it was pointed out that the form was readily adaptable to land let for other purposes. The following paragraphs of the specimen license form are material:
(1) The licensee shall have the use of the piece of land described in the schedule hereto for the purpose of constructing and maintaining thereon tanks, etc.
(8) The said privileges in Clause 1 hereof mentioned are granted on the express understanding that either party may be at liberty to determine and put an end to this license by giving to the other of them at any time three calendar months'' notice in writing and such privileges may be so determined by the administration without any claim for compensation whatever on the part of the licensee, and on the expiration of such notice the licensee shall discontinue to use and shall yield up to the administration the said land together with all such tanks, etc., thereon as the administration shall elect to purchase as hereinafter mentioned.
(9) Nothing heroin contained shall be construed to create a tenancy in favour of the licensee of the said premises and the administration may of their mere motion upon the determination of this license re-enter upon and re-take and absolutely retain possession of the said land.
On 23rd December 1916, the Agent of the Bengal North Western Railway Co. addressed the Chief Engineer of the Railway, Ext. 4(a), on the subject of granting licenses permitting the use of railway lands and pointing out that according to the Railway Board''s circular already referred to it was not permissible for a Railway Co., to lease lands without the sanction of the Secretary of State, but the Chief Engineer was informed that, in cases where railway land was required by outsiders for any purpose which could fairly be held to be a purpose of the railway, the necessity for obtaining the Secretary of State''s sanction could be avoided by the grant of a license. Specimen forms of licenses for various purposes were enclosed. Form No. E 19 was the form of a license to cut and remove grass. Form No. E 64 was the form of a license for the use of land for the purpose of cultivation. The Agent''s letter to the Chief Engineer stated that a license in form E 19 could be issued by the Resident Engineer but that in all other cases the sanction of the Agent must be obtained prior to the signing of the license. Endorsements on this letter show that six copies were forwarded to the Resident Engineer of Mansi and that the latter in due course forwarded a copy to the Assistant Engineer of Thana Bihpur. The Assistant Engineer of Thana Bihpur was one Mr. Hamilton. Form No. E 64, which was the specimen form for a license for the use of land for the purpose of cultivation, was in the following terms:
Form No. E 64.
Non-Judicial Stamp.
Eight annas.
Agreement,
An agreement made this ... day of ... 191 between the Bengal and North-Western Railway Company, Limited, hereinafter called the "Administration" of the one part and ... son of ... resident of village ... thana ... district ... hereinafter called the "Licensee" of the other part.
Whereby it is agreed as follows:
The Licensee shall have the use of the piece of land described in the schedule hereto for the purpose of cultivation subject to such rules, regulations and bye-laws as may from time to time be made by or on behalf of the Administration or by or on behalf of the Government or any local authority and subject to the conditions hereinafter contained.
2 The Licensee shall pay to the Administration a rent of Rs. ... in advance for the
period extending from the ... to the ... commencing from the first day of....
The Licensee shall not transfer or sublet the privileges in Clause 1 hereof mentioned without the consent in writing of the Administration.
The said privileges in C1, 1 hereof mentioned are granted on the express understanding that either party may be at liberty to determine and put an end to this lease by giving to the other of them at any time three calendar months'' notice in writing and such privileges may be so determined by the Administration without any claim1 for compensation
whatever on the part of the licensee, and on expiration of such notice the licensee shall discontinue to use and shall yield up to the Administration the said land free of all crops and plants.
At the expiration of the notice the Administration shall be entitled to enter into and take possession of the said land and cut down and remove the crops and plants and whatever else may be standing thereon without being liable for any damages to the licensee therefor.
Nothing herein contained shall be construed to create any right, title or interest in favour of the licensee in the said land or in neighbouring lands of the Administration.
The Licensee shall pay all necessary costs for stamping and executing this agreement.
Schedule.
As witness the signature of the parties hereto the day and year first above written.
Witness.
Signature.
It will be noticed that the material portions of para. 8 of the Railway Board''s circular are produced in paras. 4 and 5 of the form of license and that para. 6, which provided that nothing contained in the license should be construed to create any-right, title or interest in favour of the licensee in the land covered by the license, gives effect to para. 9 of the Railway Board''s circular. Owing to the shortage of mineral oils in 1918 it became necessary to increase the production of castor seeds for the purpose of securing an adequate supply of the castor oil for lubricating purposes. Consequently on 19th June 1918, the Railway Board addressed a letter (Ex. 1) to the Agent of the Bengal and North-Western Railway, drawing attention to the necessity of increasing the production of castor seed and pointing out that the Government of Bombay had adopted the policy of granting of Government waste land for one year, free of assessment, for the cultivation of castor, and that the Eastern Bengal Railway were making arrangements to cultivate the castor plant on the side of their track The Railway Board Suggested that this example might be followed with advantage wherever conditions were favourable, and requested that the Agent of the Bengal and North-Western Railway should give the matter his early attention. The Agent of the Railway replied (Ex. 1(a)) that the matter was already under consideration and Ex. 1(b) is a letter from the District Locomotive Superintendent to the Locomotive and Carriage Superintendent of the Bengal North Western Railway, dated 8th May 1919, stating the results of an experiment conducted for the purpose of ascertaining the cost of cultivating castor plants, and suggesting that the Engineering Department should be asked to give out suitable lands, at stations where available, to railway men who were prepared to take it.
The suggestion was that land should be granted to railway servants on the batai system. The railway was to be entitled to half the produce and to purchase the remaining half at the bazar rate. A copy of this letter was sent to the Chief Engineer by the Agent on 10th May 1919, (Ex. 1(d)). On 18th May 1919, the Resident Engineer of Mansi wrote to the Assistant Engineer of Thana Bihpur (Ex. 1(f)) directing him to make arrangement to let out surplus railway lands for the cultivation of castor on the batai system and submit names of persons willing to cultivate castor on this system. On 9th July 1919, the Chief Engineer of the Railway wrote to the Agent (Ex. 2) pointing out that when waste lands are brought under cultivation it usually takes three years before a remunerative crop is obtained. He stated therefore that there was little prospect of obtaining the cultivation of castor on the batai system unless the cultivator was given a lease for at least five years. The Agent''s reply to this was that leases for five years could not be given but only licenses for one year (Ex. 2(a) ). In communicating this reply to the Resident Engineer the Chief Engineer suggested that prospective licensees should be informed that the licenses would be renewable. A copy of this was forwarded by the Resident Engineer to the Assistant Engineer of Thana Bihpur (Ex. 2(b)). In August the Resident Engineer, Mansi, again addressed the Chief Engineer on this subject inquiring whether licenses were to be confined to railway servants, and pointed out that it would be easier if he were given a free hand in the matter (Ex. 1(g)).
The Chief Engineer replied (Ex. 1(i) ) stating that a free hand was accorded for the granting of licenses provided they were confined to 12 months. On 28th August 1919 a number of employees of the railway at Thana Bihpur submitted an application for the settlement of railway lands to Mr. Hamilton, Assistant Engineer, to be forwarded to the Resident Engineer. The applicants pointed out that they would have to incur considerable expenditure during the first year of the license and that it would not be profitable if "the lease were not to continue each and every year to us or to our heirs." The Resident Engineer refused to forward this letter to the Agent on the ground that the request would not be granted, and on the letter there is an endorsement by Mr. Hamilton "Inform parties concerned and return." On 26th August 1919, the Resident Engineer wrote to the Assistant Engineer at Thana Bihpur enclosing a specimen license form (No. E-64) and informing him that applicants could be granted land only on the terms referred to in the previous communications from the Chief Engineer (Ex. 2, (C-2)). An endorsement on this letter shows that Mr. Hamilton forwarded it to the Sub-Inspector, Way and Works, with instructions to him to read the specimen form to the applicants and ask them whether they were willing to take up land on the conditions therein stated. There is a further endorsement by the Sub-Inspector, Way and Works, stating that the parties did not agree to the terms. It is noticeable that in the specimen form (Ex. 2 (C-1)), sent by the Resident Engineer with his letter (Ex. 2 (0-2)) to Mr. Hamilton, paras. 4 and 5 of the original form which had been sent by the Agent of the Railway to the Chief Engineer with his letter (Ex. 4(a)) of 23rd December 1916, were omitted. It was in this state of affairs that Mr. Hamilton signed the first agreement with Ladu Prasad, dated 11th June 1920, (Ex. 1 (K-l) ). This agreement was as follows:
Agreement between B.N.W. Ry. Co. and Ladu Prasad, Bengal and North Western Rail-way (Incorporated in England).
An agreement made this eleventh day of June 1920 between the Bengal and North Western Railway Company, Ltd., hereinafter called the "administration" of one part, and Ladu Prasad, son of Mukhlal Seth, resident of village Kursela, thana Karaha, District Purnea hereinafter called the "Licensee" of the other part.
Whereby it is agreed as follows:
The Licensee shall have the use for a period of one year from the date hereof of the piece of land described in the schedule hereto for the purpose of cultivation of castor seed, subject to such rules, regulations and bye-laws as may from time to time be made by or on behalf of the administration or by or on behalf of the Government or any Local Authority and subject to the conditions hereinafter contained.
The Licensee shall pay to the Administration in lieu of rent one-half of the crop obtained which shall not be less than three maunds of castor seed per bigha.
The Licensee shall not transfer or sublet the privileges in Clause 1 hereof mentioned.
Nothing herein contained shall be construed to create any right, title or interest in favour of the Licensee in the said land or in neighbouring lands of the Administration.
The Licensee shall pay all necessary costs for stamping and executing this agreement.
(Sd) J.W. Hamilton.
(Sd.) Lado Prosad of Khursela (In Hindi).
(Sd.) Illegible.
Schedule.
Part of land of old staff quarters at Kursela as per plan attached=48 acres.
As witness the signature of the parties hereto the day and the day and year first above written.
(Sd.) Lado Prosad. By my own pen.
(In Hindi).
Signature.
Witness--
Syed Parikat Husain,
Station Master, Kursela.
(Sd.) J.W. Hamilton,
Assistant Engineer,
Thana Bihpur Sub-division.
This agreement is in the form 2 (C-1) and not in the form E-64, but it stipulated in para. 4 that nothing therein contained should be construed to create any right, title or interest in favour of the licensee in the said land or in neighbouring lands of the administration. The second agreement signed by Mr. Hamilton in favour of Ladu Prasad (Ex. 1 (L-1)) in respect of 92 acres is in precisely the same form as Ex. 1 (K 1), The legal effect of these agreements will be considered hereafter. At present it is proposed to consider the second contention of the defendants that they were granted a permanent lease of the land in August 1920. It was at one time the case of the defendants that the whole of the 175 acres in dispute had been leased to Ladu Prasad and not merely the 140 acres now covered by Exs. 1 (K-1) and 1 (L-1). The Court below has found that in respect of the remaining 35 and odd acres the defendants have encroached on railway lands. The defendants filed a cross-objection in this Court in respect of this finding, but in the course of the hearing no submission was made to us with respect to it. (His Lordship then discussed the evidence and proceeded): From our examination of the evidence we arrive at the conclusion that although the signature of the disputed document is genuine, the body of the document was not in existence when the signature was made, and the document as a whole is a forgery. Moreover, even if the document as a whole were genuine, Mr. Hamilton had certainly no authority, express or implied, to execute it. Similarly, apart from the matter of the disputed document, there was no promise by Mr. Hamilton to grant a permanent interest, and even if he had so promised he had no authority to promise and his promise would not in any way have bound the Railway Company.
It now becomes necessary to consider the rights acquired by Ladu Prasad under the documents Exs. 1 (K-1) and 1 (L-1) because, failing success upon the document which we have held to be forged, it is the contention of the defendants that Ladu Prasad was under these documents brought upon the land as a raiyat, and as it is an uncontested fact that he is a settled raiyat of the village, it is argued that u/s 21, Sub-section (1), Ben. Ten. Act, he so acquired occupancy rights and cannot be ejected. Much stress is laid on the undoubted fact that Ladu Prasad was brought upon the land under these documents for the purpose of cultivating it as though that fact were the determining factor in deciding whether his advent upon the land in dispute was or was not in the capacity of a raiyat. But this fact is by no means conclusive. Every person who is a cultivator is not necessarily a raiyat. A raiyat is one who cultivates the land as a tenant directly under a zamindar or a tenure-holder and the test of a tenancy is whether the cultivator in question obtains an interest in the land, and this in turn is a matter of the paramount intention of the parties to the contract. This criterion was clearly laid down by a Full Bench of the High Court of Madras in Board of Revenue v. S.I. Ry. Co., Ltd. 1925 Mad 434. The point in dispute in that case has no bearing upon the question of whether Ladu Prasad was or was not a raiyat, nor was the land in dispute let out for cultivating purposes; but it had to be decided whether the document in question was a mere license to use the land in question or was a lease giving the grantee an interest in Immovable property and so whether it was governed by the article relating to leases in the Stamp Act. In that case a Railway Co., had granted permission to certain consignees of coal to stack coal on certain plots of ground in the station yard. The Railway Co., as in this case, had no power to grant a lease without the sanction of the Secretary of State. In the document evidencing the agreement it was expressly stated that nothing therein should be construed to create a tenancy and there were moreover certain clauses imposing conditions which would ordinarily be implied in a license. After an elaborate review of the authorities it was held that as no interest in the land was given by the document it did not operate as a lease. The Acting Chief Justice said:
The test is not the right of the lessor to give the lease but the interest intended by him to be created by the document. The fact, however, that the Railway Co. is prohibited by orders of the Government of India from executing leases of lands in their possession is important for understanding the intention of the framer of the document, as showing that the Company would be naturally averse to giving away any rights that ought to be reserved.
An instance of an agreement for cultivation which was nevertheless held not to create a tenancy is to be found in Brahmamoyee Barmani v. Sheikh Mansur 1920 Cal 548 where certain land was made over to the defendant who at the time of the arrangement was a settled raiyat of the village for a period of 11 months on conditions first that the defendant would bring the land under cultivation and would make over half the produce to the plaintiff and take the other half as his remuneration, and secondly that at the end of the 11 months the defendant would quit the land without notice. Newbould, J., had held that the contract was one of letting out the land for cultivation and was not a mere contract of service and that the defendant had acquired a tenancy right in the land and therefore, in view of his position as a settled raiyat, he had acquired occupancy rights. This view was dissented from on appeal. Sir Asutosh Mookerjee, Ag. C.J., said:
It is sufficient to say that the document does not, in our opinion, create a tenancy. In the first place, there is no covenant to pay rent: and, in the second place, there is no clause which creates in favour of the defendant an interest in the land ... In individual cases the terms of the contract may indicate that the intention of the parties was to create in the grantee an interest in the land; in other words, if there is a demise, a tenancy is created. But the case before us is not of that description.... It is not disputed that at the date of the arrangement the defendant was known to be a settled raiyat of the village. Consequently, the moment he obtained a tenancy right in the disputed land he would acquire the status of an occupancy raiyat under Sub-section (1) of Section 21, Ben. Ten. Act. In such circumstances, it is inconceivable that the defendant should have solemnly agreed to quit the land at the end of 11 months. We cannot assume that the object of the parties was not to give expression to the real understanding between them, but rather to conceal the true arrangement. Reviewing all the terms of the contract we feel no doubt that there was no tenancy and that the defendant was bound to quit the land upon the expiry of the prescribed period: see also Pokam v. Rajani Kamal 1919 Cal 264.
It was attempted to differentiate the case in Brahmamoyee Barmani v. Sheikh Mansur 1920 Cal 548 above quoted from that before us by referring to a passage in the judgment in which attention was called to the fact that the contract was to subsist only for 11 months; whereas in the case before us the contract is for one year, that is to say for an entire agricultural period. But the main point of the decision of Mookerjee, Ag. C.J., was not the period of 11 months but the fact that it was clearly contemplated by the parties that at the end of a short fixed period the defendant should quit the land and that this was inconsistent with there having been any intention on the part of the parties that he should have a tenancy which, had it been granted, would clearly have resulted in the acquisition of occupancy rights. The case in Mohipal Singh v. Lalji Singh 17 CWN 166 is an instance of a document which was held to create a present demise and Mookerjee, J., referred to the decision which laid down the distinction between a license and a lease, and said:
That distinction is, that in the case of license, there is no transfer of interest in land, whereas in the case of a lease there is a transfer of such interest. Taking the instrument as a whole we entertain no doubt that the paramount intention of the parties was to create a present demise, and that the grantee was in the position of a tenant.
In Secy. of State v. Karuna Kanta (1908) 35 Cal 82, Mookerjee, J., reviewed the English cases on this question and at p. 100 said:
The essence of the matter is, whether the intention of the parties was to transfer any interest in land, for as Parker, C.J., put it in [Cooks v. Steams (1814) 11 Mass 533, an American case] a license is an authority to do some act or series of acts on the land of another without passing any estate in the land. In determining whether a transaction was a lease or a mere license, the substance of the agreement must be considered more than the words.
Applying these principles to the documents in question, and to the circumstances in which they were executed, we have the conspicuous fact that the Railway Company had no power to grant a lease and had been strictly enjoined not to grant a tenancy. Moreover this order had been passed on to Mr Hamilton. It could not therefore have been his intention to disobey an order of such a strict kind. Furthermore the fact that Ladu Prasad was pestering him to grant permanent rights indicates that he did not believe that anything in the nature of a permanent right would be given by the documents in question. Moreover the actual terms of the document exhibit the features (1) that the word "license" is expressly used, (2) that instead of the word "rent" the expression "in lieu of rent" is used. Further that there is an express clause stating:
Nothing herein contained shall be construed to create any right, title or interest in favour of the licensee in the said land or in the neighbouring lands of the administration.
Further that the first clause of the agreement expressly implies in no uncertain fashion that the Railway Company are to continue to control the land for railway purposes. We do not think that it can be successfully contended in the light of these circumstances and the document itself that it was intended by the parties that Ladu Prasad should obtain any interest in the land, and indeed that intention is expressly negatived Ladu Prasad therefore, since he acquired no interest in the land in dispute, cannot be considered as a tenant or as having held that land "as a raiyat." The document merely conferred upon him, as they expressly state, the rights of a licensee and nothing more. We would further say that in our opinion the Bengal Tenancy Act, in dealing with the acquisition of occupancy rights, never contemplated a contract of this nature: it was intended to apply to the ordinary agricultural relationship of zamindars, tenure holders and raiyats under them. Had the circumstances been those in which the zamindar had brought a settled raiyat upon the land, and had given him an interest in that land for the purpose of cultivation for however short a time, and even if the crop to be cultivated was of a limited kind, the provisions of Section 21 of the Act might have been held to apply. But here we have the case of a Railway Company making use, in a time of public emergency in quite exceptional circumstances, of the land normally held by them for railway purposes for growing a special crop and bringing on to the land a cultivator for that purpose for a very short and specified term under a very special agreement. These circumstances considered quite apart from the matter of Section 116 of the Act (relating to railway land) in our opinion take the case out of the operation of the Act.
In view of our finding that the defendants have not established the express grant of the permanent tenancy and that the documents executed by the Railway Company to Ladu Prasad did not result in the acquisition of occupancy rights by the defendants, it is hardly necessary to discuss in detail the second line of defence relied on by the plaintiffs in case it should be held that such occupancy rights had in fact been acquired. This second line of defence was based on Section 116, Ben. Ten. Act, according to which such rights cannot be acquired in land belonging to the Government or the Railway Company and acquired under the Land Acquisition Act of 1894 where such land is held under a lease for a term of years or under a lease from year to year. According to our finding the defendants did not hold the land under any kind of lease. Moreover, the defendants failed to prove strictly the acquisition of the land in question under the Act of 1894. It is true that they established that proceedings to acquire the land in question had been initiated, but they did not produce the decision of a competent authority, and an attempt to prove this indirectly by the production of a map Ex. 5 failed.
We were told that the construction of the Bajipur Katihar line of the Tirhut Railway was not sanctioned by the Secretary of State nor constructed until the year 1896 and that the land in question is adjacent to this line lying south of Kursela station building. But an examination of the map produced gives no indication that the land in question was acquired under the Act, nor the date of its acquisition. An application was made to us on behalf of the plaintiffs to call further evidence on this point, but in our opinion this course was unjustifiable at this stage of the case and we refused permission to call the proposed evidence. Having regard to our decision on the other points the defence u/s 116 requires no further consideration.
Lastly we have to consider the point of limitation and the length of time in respect of which mesne profits are recoverable by the plaintiffs. In ordinary cases Article 109, Limitation Act, is applicable and the profits for only three years prior to the suit could be recovered. But in this case the plaintiffs rely on Article 149 dealing with suits by or on behalf of the Secretary of State in respect of which a period of 60 years is prescribed. It is contended on behalf of the defendants that this article is not applicable because mesne profits are only recoverable by the Railway Company as the Company are entitled to possession. It is necessary, therefore, to refer again to the relationship between the Secretary of State and the Railway Company by virtue of the agreement between them. An examination of the Indenture of 18th July 1890 makes it clear that the company are merely Managing Agents and that there is no demise by the Secretary of State of the land upon which the railway is built. The provisions for dealing with the accounts are consistent only with the possession of the company as Managing Agents and the company merely takes possession not as having an interest in the land, but for the purpose of carrying out a contract of employment the land remains the property of the Secretary of State.
The learned Judge has held that Article 1l6 is applicable which relates to compensation for breach of contract which prescribes a period of six years. The suit, however, was not brought for breach of contract, but for eviction of the defendants after declaration of the plaintiffs'' right and title and for mesne profits by Way of compensation. The terms of the license contract between the Railway Company and Ladu Prasad provided that the defendants should quit the land at the termination of the agreement, that is to say on 11th June 1921. After that date the defendants became trespassers and the plaintiffs were entitled to a decree for mesne profits from that date until delivery of possession.
As to that part of the plaintiffs'' claim which relates to rent, there is a finding on the part of the learned Judge that whereas the agreement provides for the rent being paid at so much per bigha, and whereas the local meaning of the word ''bigha'' is a third of an acre, the rent must be paid upon this basis. We have no materials upon which we can criticise this finding and this finding must, therefore, stand in estimating the amount of rent claimed. The question of the recovery of mesne profits involves no such question and need no further consideration. In the result, therefore, the appeal succeeds and the suit will be decreed with costs and the costs of this appeal.